The Future of Equal Protection
“[W]hat protects us…from being assessed a tax of 100% on income above the subsistence level, from being forbidden to drive cars, or from being required to send our children to school for 10 hours a day, none of which horribles is categorically prohibited by the Constitution. Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me.” Justice Scalia, Cruzan (1990)
professor james w. nickel, sandra day o'connor college of law, arizona state university
How could equal protection become a more powerful tool for promoting equality in the USA?
• Expand the list of suspect classifications • Invigorate the “fundamental rights” strand of equal protection jurisprudence • Develop new triggers for elevated scrutiny (why just two?) • Move equal protection into new areas— e.g., criminal law
Expanding suspect classifications
Here we focus on WHO is disadvantaged because of some trait such as: • Sexual orientation • Religion? • Extreme poverty? • Noncitizens (“alienage classifications”)? • Substantial political minorities that are perpetually outvoted? • Mentally retarded? • Aged?
Equal Protection as a Minority Right
If the fundamental rights strand is not taken seriously, and if suspect classifications then do all the work, equal protection turns into a minority right. What I mean is that its protections are only available to part of the population, persons who fall within one of the suspect classifications.
Could we invigorate the “fundamental rights” strand of equal protection jurisprudence?
Here the focus is on WHAT is at stake rather than WHO suffers. The underlying principle is attractive: heighten the level of scrutiny when something of great personal or public importance is at stake. Developing this branch of equal protection would mean that it protects citizens who do not fall under any suspect classifications. The equal protection clause would then protect all of us. How should judges decide which areas are especially important? How is Lochnerism to be avoided? Justice Marshall has a nice discussion of this on 669.
Candidates for fundamental rights or interests
• Voting (“once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause….” Justice Douglas, Harper) • Procreation • Access to the courts • Basic education • The freedom to move to another state • Access to divorce • The liberty that is taken away by serious criminal penalties? • Others?
Could we develop New Triggers for Elevated Scrutiny?
I’ve always thought that equal protection doctrine in terms of suspect classifications, fundamental rights, and levels of scrutiny was very crude machinery. Could it be improved? One possibility is to add another trigger. To be new such a trigger could neither focus on WHO (suspect classifications) nor on WHAT (fundamental rights). Perhaps it could focus on HOW, on the nature of the inequality that law imposes or the type of boundary that is drawn. For example, this might approach might scrutinize inequalities that are especially invidious even though they do not use suspect classifications or protect fundamental rights. The scrutiny would be based on the nature of the inequality—that it is badly drawn or inappropriate in a constitutional democracy. Perhaps the vagueness critique in Bush v. Gore fits this approach.
The Justiciability of Social Rights
The question of whether an area of legal norms is justiciable pertains to whether those norms can be developed and applied by judges alone. The worry is that social rights involve substantial expenditures, and that judges do not and should not control resources. That is the role of legislators.
Directive Principles
If social rights are not justiciable then we could think of them as directive principles. This concept comes from the Constitution of India, which first lists “fundamental rights” that are justiciable. The next section sets out a lists of “directive principles” which are not enforceable by the courts. Instead they provide standards and goals to guide legislation and political reform.
Linkage arguments
A linkage argument tries to defend a controversial right—or to show that a “fundamental right” is in play—by showing that the controversial right is somehow necessary to the realization of an accepted and uncontroversial right. In San Antonio v. Rodriguez Justice Marshall’s dissent uses a linkage argument: “[O]f particular importance is the relationship between education and the political process and the demonstrated effect of education on the exercise of the franchise….”